How About That “Strip Search” Decision?

Other than the Casey spousal notification case, the Samuel Alito opinion I’ve heard the most criticism of is his dissent in Doe v. Groody, where, it is said, Alito voted to authorize a strip search of a ten-year-old girl in the course of executing a search warrant. Liberals will no doubt portray Groody in the most lurid light possible, so it’s worth reviewing the case in some detail.

Groody was a lawsuit by two “Jane Doe” plaintiffs against four police officers. The plaintiffs claimed that they were illegally searched by the officers, and asked for money damages. The officers moved for summary judgment, arguing that the search did not violate any clearly established constitutional rights. By a two-to-one vote, the 3rd Circuit panel upheld the trial court’s denial of the officers’ motion to dismiss the case. Alito was the dissenter.

The case arose out of the execution of a search warrant on a meth house. In the affidavit that the officers submitted to obtain the warrant, they noted that when drug dealers see that they are being raided, they commonly hide drugs on the persons of whoever may also be on the premises, hoping that the search warrant won’t allow the officers to search them. So, in this case, the officers requested permission to search anyone they found on the premises, not just the drug dealer who was the target of the raid.

The search warrant was drafted by the police officers and signed by a magistrate. It granted the officers’ request for a warrant, but didn’t specifically say that they could search occupants of the house other than the drug dealer. The officers testified that this was only because the box on the form where they described the premises to be searched wasn’t big enough to contain more information, but that they believed that the information in their supporting affidavit was incorporated by reference.

The majority held that the warrant did not authorize the officers to search anyone but the drug dealer himself. Alito disagreed. In my opinion, Alito got much the better of the argument. You can judge for yourself by reading the decision here. Alito wrote:

First, the best reading of the warrant is that it authorized the search of any persons found on the premises. Second, even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so, and therefore the appellants are entitled to qualified immunity.

Alito noted that, under the controlling authorities, search warrants “are to be read ‘in a commonsense and realistic fashion,'” a proposition with which I think most Americans, and most Senators, would agree.

Liberals’ reference to a “strip search” by officers will evoke images of slavering voyeurs gratuitously disrobing a mother and child, so it is important to understand what really happened. This description comes from the majority opinion:

The officers decided to search Jane and Mary Doe for contraband, and sent for the meter patrol officer. When she arrived, the female officer removed both Jane and Mary Doe to an upstairs bathroom. They were instructed to empty their pockets and lift their shirts. The female officer patted their pockets. She then told Jane and Mary Doe to drop their pants and turn around. No contraband was found. With the search completed, both Jane and Mary Doe were returned to the ground floor to await the end of the search.

Judge Alito made it clear that he was not pleased by the fact that searches of this nature may be necessary. But, as in so many other instances, the problem doesn’t arise from gratuitous malice on the part of police officers, it arises from the tactics of drug dealers:

I share the majoritys visceral dislike of the intrusive search of John Does young daughter, but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution. I know of no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face. Because the warrant in this case authorized the searches that are challenged  and because a reasonable officer, in any event, certainly could have thought that the warrant conferred such authority  I would reverse.

Every indication is that the officers in this case met the highest professional standards. What did they get for their pains? They got sued. Judge Alito’s opinion in Groody is well-reasoned and highly persuasive. There is no reason why leftists should be allowed to use it to cast doubt on Alito’s qualifications. On the contrary, it is a good illustration of why we need jurists like Judge Alito on the Supreme Court.